In Atlanta, and across the country, representing clients in immigration removal proceedings with criminal convictions can be tricky. The recent U.S. Supreme Court decision in Chaidaz v. U.S., _____ U.S. _____ (2013), is bound to make things even trickier. Far too often, we come across the non-citizen client who has already accepted a plea in criminal court without receiving competent advice from his attorney regarding the devastating consequences of deportation.

In 2010, the U.S. Supreme Court recognized this deficiency in Padilla v. Kentucky, 559 U.S. ____ (2010), when it ruled that 6th Amendment protections require criminal defense attorneys to inform non-citizen clients when there is a risk of deportation as a result of a guilty plea. After Padilla, non-citizens who were placed in removal proceedings for their criminal conviction were able to raise specific 6th Amendment challenges through petitions for habeas corpus and other similar post conviction mechanisms.
What happens if a person’s conviction occurred prior to the Padilla decision in 2010? The District Courts were left to determine the answer, and many reached different results using the “new rule” principles of Teague v. Lane, 489 U.S. 288 (1989). Essentially, if the Court announced a “new rule” in Padilla, the holding cannot apply to subsequent challenges with already-final convictions. However, if the decision was merely an application of the existing standards that govern ineffective assistance of counsel established by Strickland v. Washington, 466 U.S. 668 (1984), then the ruling could be applied retroactively to convictions entered prior to 2010.

In the recent Chaidez case, the Supreme Court said that the Padilla rule does not apply retroactively. Here’s how they got there. First, instead of simply assessing whether Padilla’s representation fell “below an objective standard of reasonableness,” which is the “regular” Strickland test, the Supreme Court for the first time said in Padilla that an attorney must affirmatively advise a client of the negative collateral consequences of a guilty plea. Next, the Court noted that the main question in Padilla was not whether counsel was ineffective by remaining silent on the issue, but rather “does the scope of the 6th Amendment extend to consequences outside of the criminal proceedings?” Because there was no prior precedent which dictated this answer, the Padilla decision “broke new ground.” Because it broke new ground, the rule is not applied retroactively to cases handled before the Padilla decision was announced.

Unfortunately for Ms. Chaidez and many others, when an immigration attorney completely fails to advise that an aggravated felony conviction triggers mandatory deportation, this failure by the lawyer cannot be challenged under Padilla if the plea was entered before 2010. However, all may not be lost because the Court hints at the remaining potential for challenges under the pre-existing Strickland test. It leaves open the possibility to challenge “material representations” where the client is affirmatively misled with the wrong advice regarding deportation or another collateral matter. Ultimately, the Court highlights that deportation “is a ‘particularly severe’ penalty,” and advice of a plea’s deportation risk should “not [be] exempt from Sixth Amendment scrutiny.”

Does this mean that non-citizens who pleaded guilty before March 31, 2010 should simply give up without attempting to challenge their lawyer’s ineffective assistance of counsel? Of course not. A person facing deportation from a country she considers home may feel it is worth every effort to fight removal, so long as it is understood that this recent decision limits the likelihood of success.